Kallas: The Judge Rules – The Latest On The NFL Lockout

TAMPA, FL - DECEMBER 10: The NFL Shield logo is shown on the field before the Tampa Bay Buccaneers game against the Atlanta Falcons on December 10, 2006 at Raymond James Stadium in Tampa, Florida. The Falcons defeated the Bucs 17-6. (Photo by Doug Pensinger/Getty Images)

Things are rapidly changing in the NFL and in the case of Brady v. NFL. Here is the latest as of 9:30 Tuesday morning.

By now you probably know that Judge Susan Nelson in federal district court in Minnesota has granted a preliminary injunction to the NFL players in their continuing battle with NFL owners (yes, for the most part, millionaires v. billionaires who can’t figure out how to split up $9.2 billion). The immediate issue now is whether Judge Nelson or the United States Eighth Circuit Court of Appeals will stay the order of Judge Nelson. Absent such a stay, it says here that, not only can players under contract report to their respective teams facilities, but that, if teams so desire, they could make trades and sign free agents virtually immediately (although they probably won’t – can you say collusion?).

A JUDGE RECOGNIZES THE INTERESTS OF THE FORGOTTEN GROUP – THE NFL FANS

Hard to believe that a federal judge in Minnesota would be the one, more so than any player or any owner (no matter what both sides say in trying to manipulate the court of public opinion in their respective party’s favor), to recognize the interests of NFL fans. But that’s exactly what Judge Nelson did at page 87 of her opinion.

Judge Nelson went through the four factors that she must consider when deciding (as she did) to grant the players a preliminary injunction putting an end to the lockout put in place by the owners. Those four factors are: “(1) the threat of irreparable harm to the moving party [the players]; (2) balancing this harm with any injury an injunction would inflict on other interested parties [the owners]; (3) the probability that the moving party [the players] would succeed on the merits; and (4) the effect on the public interest.

While finding in favor of the players on all four of the above and, thus, granting the injunction, here’s what Judge Nelson said about the fans at the end of her finding that “The Public Interest Does Not Favor The “Lockout’”:

“AND. OF COURSE, THE PUBLIC INTEREST REPRESENTED BY THE FANS OF PROFESSIONAL FOOTBALL – WHO HAVE A STRONG INVESTMENT IN THE 2011 SEASON – IS AN INTANGIBLE INTEREST THAT WEIGHS AGAINST THE LOCKOUT. IN SHORT, THIS PARTICULAR EMPLOYMENT DISPUTE IS FAR FROM A PURELY PRIVATE ARGUMENT OVER COMPENSATION.” (Caps added)

From a fan’s perspective, you can’t say it much better than that. This judge should be hailed as a national hero for simply recognizing the stake that fans of the NFL have in an NFL season. Score one for the good guys.

BUT WHAT ABOUT THAT STAY?

Well, it’s hard to believe that Judge Nelson would grant such a stay. Her holding is that the lockout is illegal and that the players are all being irreparably harmed every day. So the NFL will go to the Eighth Circuit seeking a stay of Judge Nelson’s ruling.

Here, generally speaking, is what the appellate court must consider when looking at a motion for a stay: (1) whether the stay applicant [the NFL] has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant [the NFL] will be irreparably injured absent a stay]; (3) whether issuance of a stay will injure the other parties [the players] interested in the proceedings; and (4) where the public interest lies.

Since Judge Nelson repeatedly held in her opinion that the players (whether under contract, free agents or even rookies) are suffering “ongoing, irreparable harm,” the Eighth Circuit would essentially have to totally reverse her finding and find that, not only are the players not being irreparably harmed, but that the owners ARE being irreparably harmed if they want to grant a stay of the injunction pending appeal. But, frankly, for the owners, this isn’t really about “irreparable harm.” This is, as always with the owners, all about the money. And you can’t get an injunction if the harm to you is simply monetary.

Thus, although one never knows what an appellate panel will do (and even considering that, according to legal experts, the Eighth Circuit is, if anything, a “pro-business” circuit), it says here that it will be very hard to grant a stay. If the Eighth Circuit believes, as the NFL will maintain, that it will become the “Wild West” with no rules in place, maybe they would try to fashion some kind of remedy to allow the NFL a little time to put some rules in place. But, from a legal analysis, it will be very hard for a stay to be put in place.